Ghufraan Ahmad vs Chief Judicial Magistrate, Azamgarh and Others

S.H.A. Raza and V.K. Chaturvedi, JJ.—The applicant Ghufraan Ahmad has filed this petition u/s 482, Code of Criminal Procedure praying that the order dated 6.2.97 passed by the Chief Judicial Magistrate, Azamgarh arising out of Criminal Application No. 33 of 1997 be quashed. It is further prayed that operation of the order dated 6.2.97 passed by the Chief Judicial Magistrate, Azamgarh arising out of Criminal Application No. 33 of 1997, Hafizurrehmaan v. Ghufraan Ahmad and Ors., be stayed.

The applicant has arrayed two persons as opposite parties, namely Ram Raj Tewari, Chief Judicial Magistrate, Azamgarh as well a Hafizurrehman son of Junaid. The order which was sought to be quashed, was passed by the C.J.M. on all application preferred by the Petitioner u/s 156(3), Code of Criminal Procedure The C.J.M. ordered the police to investigate the matter. Being aggrieved against the said order, an application u/s 482. Code of Criminal Procedure was filed by the applicant. On 21.3.97, the following order was passed by Hon�ble single Judge of this Court :

Heard,

Duly considered the submissions.

Since the entire money has been paid and obtained by the complainant, as per Annexure-5, the pettion is finally disposed of as under:

The order dated 6.2.97 passed by the C.J.M., Azamgarh arising out of criminal application No. 33/97 stands quashed.

After the said order was pronounced and signed by the Court, an application was preferred by opposite party No. 3 Hafizurrehman stating that during execution proceedings, the State Government deposited a sum of Rs. 17.13 lacs, out of which the applicant and Smt. Khudaija Bibi had their share to the tune of Rs. 5,71,000. After deposit of the award by the State of U.P., Gufraan Ahmad, who was appearing on behalf of Respondent No. 3, made an application as counsel before the executing Court on 4.5.95 on behalf of the applicant with the prayer that documents for payment of the compensation of the applicant and Smt. Khudaija Bibi be prepared in the name of Gufraan Ahmad and to pay the same to Gufraan Ahmad. After a report of the Nazir was obtained, the Court ordered to make a request to the District Judge for preparation of voucher in the name of the applicant, but the record shows that the name of the applicant was replaced by the name of Gufraan Ahmad, advocate. It was also averred in the said application which was supported by an affidavit that the cutting portion of the order did not contain initial of the Presiding Officer. On the basis of the said order, Gufraan Ahmad, Advocate received the said voucher and deposited the same in his personal account No. P/287 in State Bank of India and according to the applicant, the said amount was not paid to them. Thereafter, they applied for execution of the award. The executing proceedings are still pending. It is further submitted that the said order was passed by the C.J.M. u/s 156(3), Code of Criminal Procedure which was quashed by the Court on 21.3.97 without issuing any notice to Respondent No. 3, and hence the said order dated 21.3.97 be recalled. The Court accordingly recalled the order on 12.4.97 and ordered for listing of the case before the appropriate bench in the next supplementary cause list. The said order dated 13.4.97 recalling the order dated 21.3.97 passed by Hon�ble single Judge was assailed before this Court and it was submitted that u/s 362, Code of Criminal Procedure the Court was not vested with the power to review or alter its final judgment.

No doubt, a criminal Court was not vested with the power to recall, review or alter its judgment once signed and pronounced, but at the same time the power of the criminal Court cannot be equated witlv the power of the High Court envisaged u/s 482, Code of Criminal Procedure which vests this Court a power to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is well-settled that if the Court has committed any mistake inadvertently which has resulted into miscarriage of justice, the High Court has inherent power to correct the mistake or recall its earlier order if the mistake is as such which glares at the face of the Court. It is pertinent to mention here that the Hon�ble single Judge without issuing notice to the respondents, could not have passed an order quashing the order passed by the C.J.M. But as soon as the attention of the Court was drawn towards that fact, the Court realising its mistake recalled the order which was passed inadvertently. If the order would not have been recalled, the illegality would have been allowed to perpetuate causing irreparable loss and injury to the respondents. Section 482, Code of Criminal Procedure confers a power on the High Court to pass such orders as may be necessary to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Section 362, Code of Criminal Procedure is not applicable in the instant case inasmuch as the judgment and order has not been altered by the Court but it was only recalled and the petition will be heard and disposed of on its merits.

In view of the fact that pursuant to the order passed by the C.J.M., Azamgarh u/s 156(3), Code of Criminal Procedure first information report has been registered, this petition u/s 482, Code of Criminal Procedure has lost its efficacy and relevance. It is accordingly dismissed.